This is a case  for legal separation filed in the Court of First  Instance of Pangasinan  wherein on motion of the defendant, the case was dismissed.  The order of dismissal was appealed to the  Court of Appeals, but  said Tribunal  certified the case to this Court on  the  ground that there is  absolutely  no question of fact involved, the motion being  predicated on the assumption as true of the very facts testified to by plaintiff-husband.

The facts of the case  abridgedly  stated are as follows: Benjamin Bugayong, a  serviceman in the United States Navy, was married to defendant Leonila Ginez on  August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived  with the sisters of the husband in said municipality, but before the latter  left  to report back to duty, he and his wife came to an agreement that Leonila would stay with his sisters who later moved to  Sampaloc, Manila. After some time, or about July, 1951,  Leonila Ginez left the dwelling of her sisters-in-law and4nformed her husband by letter that she had gone to  reside  with  her mother in Asingan,  Pangasinan, from which place she later  moved  to  Dagupan City to study in a local college there.

As  early as July,  1951,  Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister- in-law) and some from  anonymous writers (which were not produced  at the hearing) informing him of  alleged acts of infidelity of his wife which he did not even  care to mention.  On  cross-examination, plaintiff  admitted  that his wife also informed him by letter,  which he claims to have destroyed, that a certain "Eliong"  kissed her.  All these  communications prompted him in October, 1951 to seek the advice of the Navy Chaplain  as  to the propriety of a legal separation between him and his wife on account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal department.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom  he met in the house of one Mrs.  Malalang,  defendant's godmother.  She came along with him and both proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2 nights  and 1  day as husband  and wife. Then they repaired to the plaintiff's house and again passed the night therein as husband  and wife.   On the second day, Benjamin Bugayong tried  to verify from his wife the truth of the information he received that she  had committed adultery but Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity imputed on her.  After that and despite  such  belief, plaintiff exerted efforts to locate  her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his  wounded feelings".

On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal separation against his wife, Leonila  Ginez, who timely filed  an answer vehemently denying the  averments  of the complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was not possible,  the court set the case for hearing on June  9, 1953.  Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for the  dismissal of the complaint,  but the Court ordered him  to file a  written  motion to  that  effect and gave  plaintiff 10  days to answer the same.

The motion to dismiss was predicated on the follpwing grounds:  (1) Assuming arguendo the truth of the allegations of the commission of "acts of rank infidelity amounting to adultery",  the  cause of action, if any,  is  barred by the statute  of  limitations;  (2)  That under  the same assumption, the  acts charged hive  been condoned by the plaintiff-husband;  and  (8)  That the  complaint failed to state a cause of action sufficient for this court to render a valid judgment.

The motion to dismiss was answered by plaintiff and the Court, considering only  the second ground of the motion to dismiss,  i. e.,  condonation,  ordered the  dismissal of the action.  After the motion for reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of Appeals, appellant's counsel maintaining that the lower court erred:

(a) In so prematurely dismissing the case;

(b) In finding that there was condonation on the  part of plaintiff-appellant; and

(c) In entertaining  condonation as a  ground for  dismissal in-asmuch  as  same was not raised in the answer or in a motion to dismiss.

As the  questions raised in the brief were merely  questions of law, the Court of Appeals certified the case to this Superiority.

The Civil Code provides:

Art. 97. A petition for legal separation may  be  filed:

(1)  For adultery on  the part of the wife and  for concubinage on the part of the husband as defined in the. Penal Code;  or

(2) An  attempt by  one  spouse against the life of the other.

Art. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of  or consent to the adultery or concubinage.  Where both spouses are offenders, a legal separation cannot be claimed by either of them.  Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

ART. 102. An  action for  legal separation cannot be filed except within  one year from and after the, date on  which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred.

As the only reason of the  lower Court for dismissing the action was  the alleged condonation of the charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will "disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in appellant's assignment of errors.

Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouvier's Law Dictionary, p.  585, condonation is the "conditional forgiveness or  remission,  by a  husband or  wife of a matrimonial offense which the latter has committed". It is to be noted, however, that in defendant's answer she vehemently and vigorously denies  having committed any act of infidelity against her husband, and even if We were to give full weight to the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and link such evidence with the averments of the complaint, We would have to conclude that the facts appearing on  record are far from sufficient to  establish  the  charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery" preferred against the defendant.  Certainly,  the  letter that plaintiff claims to have received  from his sister-in-law Valeriana Polangco, which  must have been too  vague  and  indefinite as to defendant's infidelity to deserve its production in evidence; nor the anonymousi letters which  plaintiff  also failed to present; nor the alleged letter that, according to plaintiff, his  wife addressed  to him admitting that  she had  been kissed by one Eliong, whose identity was not established and which  admission  defendant had no opportunity to deny because the motion to  dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that can be relied upon.

But this is not  a  question at issue.  In this  appeal, We have to consider plaintiff's line of conduct under the assumption that he really believed his wife guilty of adultery. What did he do in such state of mind.  In August, 1952, he  went to Pangasinan  and looked for his wife and after finding her they lived together as husband and  wife for 2 nights and  1 day, after which he  says that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain his purpose  because  his wife, instead of answering his query on the matter, preferred to desert him, probably enraged for being  subjected to such humiliation.  And  yet he tried to locate her, though in vain.   Now, do the husband's attitude of sleeping with his wife for  2 nights despite  his alleged belief  that she was  unfaithful to him,  amount to a  condonation of her previous  and  supposed  adulterous  acts?  In  the  order appealed from, the Court a quo had the following to say on this point:

"In the  hearing of the  case,  the plaintiff  further testified as follows:

'Q.  Now  Mr. Bugayong, you have filed this action  for legal separation from your wife.  Please  fell  this Hon. Court  why you want to separate from your wife? A. I  came to know that. my wife  ia committing adultery,  I  consulted the chaplain  and  he told  me to consult the legal adviser.'  (p. 11, t. s. n.)

'Q.  Did  you finally locate her? A. Four, days later or on the fifth day since my arrival she went  to the house of our godmother and as a  husband I  went to her to come along with me in our house but  she refused.'  (p.  12, t. s. n.)

'Q.  What happened next? A. I persuaded her to come along with me.  She consented but I did not bring her home but  brought her to the house of  my cousin Pedro Bugayong." (p. 12, t. s. n.)

'Q.  How long  did you remain in the house of your cousin Pedro Bugayong? A.  One day and one night.'  (p. 12, t.  s.  n.)

'Q.  That  night when you stayed in the  house of  your  cousin Pedro Bugayong as husband and  wife, did you sleep together? A. Yes, sir.'  (p. 19, t. s. n.)

'Q.  On the next night, when you slept in your own house, did you sleep together also as husband and wife? A.  Yes, sir/  (p. 19, t.  g. n.)

'Q. When  was that? A.  That was  in  August,  1952.' (p. 19, t.  s. n.)

'Q. How  many nights did you sleep  together as husband  and wife? A. Only  two nights.'   (p. 19, t.  s. n.)

"The New Civil Code of the Philippines, in its Art. 97, Hays:

"A petition for  legal separation may be filed:

(1)  For adultery on the  part of the wife  and concubinage  on the part of the husband as  defined in the Penal Code.' and in its Art. 100 it says:

'The legal separation may  be claimed only by the innocent spouse, provided there has been to condonation of or consent to the adultery or concubinage.  Where both spouses are offenders, legal separation can not be claimed by  either of them.  Collusion between the parties to  obtain  legal separation shall cause the dismissal  of the petition.'

"A detailed examination of the testimony of the plaintiff-husband, especially  those portions  quoted above, clearly  shows  that  there was  a condonation on the part  of the husband for the supposed 'acts of rank  infidelity amounting to adultery'  committed by defendant-wife.  Admitting for the  sake  of argument  that the infidelities amounting to adultery were  committed by the  defendant, a  reconciliation was effected  between her and the  plaintiff.  The act of the latter  in persuading her to come  along with him, and the. fact that she went with him and consented to be  brought  to the house  of his  cousin  Pedro Bugayong and together they slept there as husband and wife for one day and one night, and  the further fact that in the second night they again slept together in their house likewise as husband and wife all these facts have no  other meaning in the opinion of this court than  that a  reconciliation between them  was  effected and that  there was a condonation of the wife by the husband.  This reconciliation occurred  almost  ten months after he came to know of the acts of infidelity amounting to adultery. "In  Shackleton  vs. Shackleton, 48  N. 3. Eq. 364; 21 Atl.  93§, it has been held  that 'condonation is implied from sexual  intercourse after knowledge of  the other infidelity.  Such acts necessarily implied forgiveness.  It  is entirely consonant with reason  and  justice that if the  wife  freely  consents to sexual  intercourse after  she has  full  knowledge  of the husband's  guilt,  her  consent  should operate as a pardon of his wrong.'

"In  Tiffany's Domestic  and Family Relations, section 107 says:

'Condonation.   Is the  forgiveness of a  marital offense constituting a ground for divorce and bars the right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer  shall not again commit  the offense; and also that he  shall thereafter  treat the other spouse with conjugal  kindness.  A breach  of the  condition  will  revive  the 4 original offense as a ground for  divorce.   Condonation may be express  or implied'.

"It has been held in a long line of decisions of the various supreme courts of the different  states of  the U. S. that  'a single voluntary act  of  sexual intercourse by  the innocent spouse after  discovery of the offense is ordinarily  sufficient to constitute condonation, especially  as against  the  husband'.   (27  Corpus Juris Secundum, section  61  and eases cited therein).

"In  the  light of  the facts testified to by the plaintiff-husband, of the legal provisions above quoted,  and of the various decisions above-cited, the  inevitable conclusion is that the present  action is untenable."

Although no acts of infidelity might have been committed by the wife,  We agree with, the trial judge that the conduct of the plaintiff-husband  above  narrated despite his  belief that his wife was unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against the  offending wife, because his said conduct comes within the  restriction of Article 100 of  the Civil Code.

The  only  general rule  in American  jurisprudence  is that any cohabitation with the  guilty  party,  after the commission  of the  offense,  and with the knowledge or belief on  the part of the injured party of its commission, will  amount  to conclusive  evidence of condonation; but this presumption may be rebutted by  evidence  (60  L. J. Prob. 73).

If there had been cohabitation, to what extent  must  it be to constitute condonation?

Single voluntary act  of marital intercourse between the parties ordinarily is sufficient  to constitute condonation, and  where the parties  live in  the same  house,  it is  presumed that they live on terms of matrimonial cohabitation (27 C. J. S., section 6-d).

A  divorce suit will not be  granted for adultery where the parties continue  to live together after it was  known vs. Blartin, 15 South 657;  Day vs. Day, 80 Pac.  974) or there is sexual intercourse after knowledge of adultery  (Rogers vs. Rogers,  67 N. J. Eq. 534) or sleeping  together for a single night  (Toulson vs. Toulson, 50 Atl. 401,  citing  Phinizy vs. Phinizy, 114 S. E.  185, 154 Ga. 199; Collins vs.  Collins,  193  So. 702), and many others.  The  resumption of marital cohabitation as  a  basis of condonation will generally  be inferred, nothing appearing to the contrary, from  the  fact of the living together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to  depart from the doctrines laid down in the  decisions of the various supreme courts of the United States above quoted.

There is  no merit in the contention of appellant that the lower  court erred in  entertaining condonation  as  a ground for dismissal  inasmuch  as same was not raised in the answer or in a motion to dismiss, because in the case at bar, the question of condonation was raised in the second ground of the  motion to dismiss.   It is true that it was Hied after the answer and after the.hearing had been commenced, yet that motion serves to supplement the averments  of defendant's answer and to adjust the issues to the testimony of plaintiff himself (section  4, Rule 17 of the Rules of Court).

Wherefore,  and on  the strength of the foregoing, the order appealed from is hereby affirmed, with costs against appellant.  It is so ordered.

Paras, C. J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., and Endencia, JJ., concur.